A Trial Lawyer’s Experience as a Mediator: A Few Brief Lessons

On the first day of practice as a trial lawyer, my boss told me about the different cross-examination styles of the partners. He spoke of one, a very devout Catholic, as a pugilist. He would just come out swinging. The witnesses would see the blows coming, but there was nothing they could do. He would leave them a bloody pulp. Another partner was a Quaker and a very kind man. His style was different. He used a stiletto. Often the witnesses would not see it coming and sometimes they wouldn’t even feel it going between the ribs, but the result was the same, a pool of blood underneath the chair.

The more I practiced the more I found that my boss was just being honest. I am grateful for the rule of law and the right to a trial by a jury. I know of no role nobler that being an advocate for another human being, but I also know that the adversarial system is a backup system for people who cannot resolve their own conflicts.

People can resolve their own conflicts. What a wonderful role, being a mediator—to be present to each story, to see the humanity in each person, to develop a relationship of trust with each party, to provide the space where the parties can have a good conversation to get to a good place together.

As mediators, we cannot underestimate the importance of taking the time to develop a relationship of respect and trust with the parties and to deserve their trust. I find that simple curiosity about and caring for the stories of each party is a reward in itself. Curiosity and caring come from the same Latin root.

A very wise mediator told me that I should give all the credit to the parties for any outcome. One of the great lessons of mediation for me was the freedom found in giving up a desire to control the outcome. My experience is that early reality checks get in the way and that I can be most helpful when the parties have gone as far as they can go and then I can be of assistance in bridging the gap.

What a difference it makes to be in a role where you can be forever hopeful and optimistic about people’s ability to solve their own problems. I like to say to the parties that I will be persistent if they are patient. I have learned to stay in touch with those cases that don’t settle at the first meeting.

I find that the way I mediate is determined by the context—meeting the needs of these particular parties. I use different methodologies when I am mediating a tort case and when I am mediating a sexual abuse case, for example. I am always open to suggestions as to how I can be most helpful.

Finally, I think we are on to something bigger than just resolving one case at a time. We are part of a movement rediscovering, as David Brooks writes in his book The Social Animal, a relational worldview that is consistent with new discoveries from science, particularly neuroscience, and is a response to autonomous individualism. We are all interconnected and interdependent. In a world epitomized by the lack of real discourse and collaboration in Congress, we are, in our way, restoring the art of conversation, people’s ability to collaborate, and the possibility of creating something new.

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